Everyone is entitled to his own opinion, but not his own facts.

Dad’s Army for Freedom!

Barack Obama took a nice dig at Second Amendment absolutists in his second inaugural speech:

For the American people can no more meet the demands of today’s world by acting alone than American soldiers could have met the forces of fascism or communism with muskets and militias.

The question: what did the authors of that little sentence, the Second Amendment, mean by it? is subject to the historical analogy to Goodhart’s Law : when an indicator is used for policy, it gets distorted (see: monetary targets, Soviet central planning). To get an unbiased evaluation of the original intention, you’d have to hire a historian from Mars and deprive them of all data after 1800.

Fortunately there’s a slightly easier question. Where did they get the idea of :

A well regulated militia being necessary to the security of a free state …

How does this stand up as a claim of fact?
In 1792 it looked pretty good:

Non-tiny “free” countries known to me to have a regulated militia:
United States.

Non-tiny “free” countries with a conscript citizen army, with or without an obligation to serve in the reserves after full-time military service:
Greece, Israel, South Korea, Switzerland.

Most stable democracies don’t have militias. The USA is an outlier with the volunteer National Guard. Otherwise? Britain’s part-time Territorial Army units are extensions of the full-time army, including the splendidly named Artists Rifles, a regiment of the SAS. Israeli and Swiss men are subject to obligations of service in the reserves for some years after their period of full-time service, but this is not a distinct militia. South Korea seems to rely on long conscription, not reserves.

This reflects a military consensus on the low value of part-time militias, as opposed to reserves after full military training. Small countries facing serious military threats rely on versions of the citizen army (conscription for a few years then a reserve obligation) created by Scharnhorst and von Stein in Prussia in 1812-1815.

Survivalist nutters in their planned Idaho Citadel impose these conditions on applicants:

All residents over 13 must be proficient with both rifle and pistol, and each household will have to provide one “able-bodied Patriot” for once-a-month militia training and support.

Once a month. And they are thinking of resisting professional soldiers! The middle-aged Yeomen of the Guard at the Tower of London, 22-year veteran NCOs, could take them out with halberds.

This overwhelming imbalance long antedated the American Revolution. The first professional standing army in modern Europe was set up by Charles VII of France in 1445, if you don’t count the 14th-century Ottoman janissaries. In practice kings had relied on paid professional soldiers rather than feudal levies for their campaigns for a century before that.

The American revolutionary war did provide some argument for militias, since the rebel armed forces were initially drawn from colonial militias. However, the revolutionaries immediately recognized the need to create a regular army to face British redcoats. The state militias became auxiliaries to the full-time Continental Army. Daniel Morgan’s successful tactics at Cowpens for instance were designed to work around the known weaknesses of his militia forces, using them as shock-absorbers in front of his regulars.

These American militias of the 1770s did exceptionally well against the redcoats, for a number of reasons. The colonials had been left very much to their own devices for 150 years by the British Crown, which provided troops only for international conflicts. Colonial militias had real functions in fighting Indians, and putting down riots, affrays, and slave revolts. The Seven Years War, ending only twelve years before the revolution, had created an existential threat to the British colonies, with high anxiety and preparedness. The run-up to the outbreak of the revolution had maintained this. It’s hard to imagine more favourable circumstances for a popular militia. In the conflict itself, the huge size and rugged terrain of the theatre of operations allowed militia forces to make a contribution impossible in Western Europe; compare the Soviet Partisans in the forests and marshes of western Russia and Belorussia in WWII.

Later exceptional victories by largely militia forces – New Orleans in 1812 and the Texians’ San Jacinto in 1836 – further encouraged the myth of exaggerated militia prowess born at Concord and Lexington. The former was down to outstanding leadership by the experienced frontier warrior Alexander Andrew Jackson, facing a talentless British general; the defeat at Bladensburg was more typical. At San Jacinto, Houston got lucky against very poor Mexican regulars, who hadn’t posted picquets for their siesta. It wouldn’t have happened in Marlborough’s or Wellington’s armies, or for that matter those of Gonzalo de Cordoba and Alexander.

Besides, the technical gap in skills and weaponry was at its historical narrowest in the 18th century: the prime object of training musketeers was to reduce them to brainless automatons, components of the short-range machine gun of an infantry company. This doesn’t take that long, compared to instilling the skill sets of a Mongol archer on horseback, a knight in early mediaeval Europe, or the driver of a modern tank. In fact, the use of hunting rifles even gave American militiamen an advantage in range and accuracy over musketeers when firing from defensive cover, as at New Orleans.

The course of the war explained why the militia rated a flattering mention in the constitution of the new state; but not its curious form. Revolutions are by definition atypical situations. The Second Amendment implies that militia have a long-term constitutional value in the steady state, including peacetime. Why should the authors have thought so?

We should look at two strands of of their intellectual heritage: the fate of the Roman Republic, and British constitutional struggles.

The Founders had thorough classical educations, and thought much more than we do about the fate of the very few republics known to history at that time. The greatest

Gold stater, c. 217 BC, from the war against Hannibal: Roman soldiers with captive

of these was the Roman Republic. It fell through a toxic combination of greed, ambition and unrestrained competition within the senatorial class, and the huge professional armies needed for imperial conquest and control. A crucial step in the path to ruin was the military reforms of Gaius Marius in 107 BC, which opened the door of the Roman army – previously restricted to the propertied – to the poor; and made it a standing one, with long service and pension rights. Since the poor still had no political rights, this drove an ultimately fatal wedge between the citizens and their army. The lesson for the Founders was that professional standing armies are a threat to republican institutions.They could have drawn the same conclusion from Philip of Macedon’s destruction of Greek democracy.

(I cannot unfortunately prove this. They would have read Macchiavelli, who inveighs against mercenaries and tried to set up a militia in Florence; but he did not as far as I can search make the connection to Marius that I do.)

They would have reached the identical conclusion from their knowledge of the struggles in Britain between King and Parliament. A quick recap of a story they would have been very familiar with.

Start in 1640. Protected by the sea and its (professional) navy, England had not been forced to follow its continental counterparts down the path of professionalisation and discipline shown by the Spanish tercios. Quasi-feudal levies and trained bands were enough to deal with the limited threats that Scotland and pacified Wales could mount, and internal rebellions. However, the English were well aware of developments in Europe. For all Elizabeth I’s bravado in front of her troops at Tilbury in 1588, everybody knew that if the Spanish Armada succeeded in its mission of transporting the superb army of the Duke of Parma to Kent, Protestant England was toast. The squires didn’t need Livy to see the connection between Papism, absolutism and standing armies, not to mention taxes: for a standing army is its own tax-collector. They developed a justified political suspicion of the idea.

Charles I did not SFIK try to set up a standing army, but his efforts to rule by prerogative ironically led to the creation by his adversaries of just about the finest professional army England has ever had, Cromwell’s New Model. This army was an anomaly, not only by its cohesive Old Testament ideology. Eventually a fraction of it, under the centrist (or sellout) General Monck, allowed Charles II to restore the monarchy in 1660.

Complicated manoeuvres over the next two years led to the creation both of a formal English militia and a small standing army, both under royal command. Charles first audaciously created a county militia by prerogative. This was a paramilitary police force charged with disarming republicans, including many highly dangerous trained veterans of the New Model. Meanwhile the relics of the New Model Army were slowly disbanded. The Cavalier Parliament was all in favour of disarming republicans but objected to the use of the prerogative. At the same time Charles got lucky when a tiny group of crazed Fifth Monarchists attempted a hopeless coup. Hyping the non-existent threat, Charles got his Patriot Act in the form of the Militia Act of 1662. This both confirmed the county militias and halted the disbandment of Protectorate troops, allowing a few regiments to become the origin of Britain’s Crown-led army.

A musketeer of the Coldstream Guards in 1669, the oldest regiment in the British Army and its historical link to the New Model Army. Coldstream in the Cheviots was where Monck’s army entered England.Credit
It’s most unlikely that anybody at the time was confused about the difference. This surely included Charles, who had led a scratch force to a crushing defeat against the New Model at Worcester in 1651. He had enjoyed plenty of opportunity in exile in France and Holland to observe the modern professional armies that had defeated that of Spain. Sure enough, when the Duke of Monmouth launched a rebellion against James II in 1685, the militias failed to deal with it until the proper army arrived. When James pushed the English squirearchy too far, they got rid of him not with a pointless militia revolt but by calling in William of Orange from the Netherlands with a Dutch professional army. James’ irresolution invited that of his standing army, which never engaged the invaders in more than skirmishes.

The English Bill of Rights of 1689 consolidated the Glorious Revolution. It did not mention the militia, which had played no significant part in the crisis. It did provide:

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.

There is no clear connection between these clauses. A proposal that the right to bear arms be for collective defence was actually struck out in the drafting. The 1688 right to bear arms is individual, except for those untrustworthy Catholics.

Parliament meant business about the standing army. Since it recognized that one was in practice essential, it kept control by adopting the Mutiny Act – the basis of military discipline – one year at a time, until as late as 1879. In contrast, the militia system declined steadily in the following century and was eventually abolished as an irrelevance in 1816, after two decades of a great European war in which it had played no part.

The political connection in England between a militia – useful for police purposes but not in war against other European powers – and the preservation of liberty was, I suggest, only this: that it reduced the size of the peacetime standing army, which did represent a permanent threat to the constitutional settlement of 1688. Alexander Hamilton stated the case clearly in Federalist Paper 29:

If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions.

Both the classical and the British streams of intellectual influence would have strongly supported the idea that a militia is useful to the preservation of liberty in two ways: as a police force against threats to society short of proper war, and as reducing or obviating the need for a standing army.

I can’t find in either the classical or the British histories any idea that a militia represents a military counterweight to a standing army, a threat in being of justified rebellion against a tyrant. This has been patent nonsense since the fifteenth century. Is there any evidence that the level-headed, educated, battle-hardened and cynical authors of the American Constitution entertained it for a second?

Madison, in The Federalist No. 46, invoked “the advantage of being armed, which the Americans possess over the people of almost every other nation,” avowing that if European civilians were comparably equipped, “it may be affirmed with the greatest assurance that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.”

Homer nodded. [Update/correction 20 February: this turns out to be a dangerously selective quotation. Madison’s argument is more sophisticated and while still a stretch is far from silly. See Stanton Scott’s commentinfra.}

A clip from Dad’s Army, an affectionate tribute to Britain’s wartime Home Guard:

Update 19 February
Thanks to commenters for an excellent discussion thread.
My claims stand up pretty well, but comments add important nuances. I mentioned the slave control function of American militias, but it was clearly much more important to the slave states than I thought, and a specific driver of the Second Amendment. The non-slave states went along partly because they also faced regional threats (British Canadians, Indians), partly because they bought into the contemporary Anglo-American CW – now refuted – about standing armies.

Comments

I think you’ve correctly identified the basis for thinking that a militia was necessary for a free state: Because it relieved one of the need to have a standing army. I’d add, it relieved you of that necessity while not itself being suitable for prosecuting wars of agression. (Which was the real reason we abaondoned the militia system here in the US.) Unfortunately, as history has shown, “necessary” is not “sufficient”, and I really doubt that the USA of 2013, with such a huge percentage of it’s population in prison, and laws regulating so many aspects of our behavior, would be considered by the founders to be a “free” state.

We’re talking about what’s necessary for a free state to be “secure”, not “exist”, so I’m not so sure that’s actually been demonstrated, but I suppose I’m not totally averse to admitting the founders were wrong about some things. So long as it’s understood that the Constitution they wrote based on those assumptions remains binding law anyway until formally revised.

You’re setting up an unfalisifiable position. And it is indisputably true that armed militias can destroy a democracy as happened to Weimar Germany. And your second sentence is disingenuous as I’d bet significant money that, your implication notwithstanding, you aren’t going to stop making this particular argument as to why we should not change the Second Amendment.

Let me be explicit: I think it’s possible for a country to be free without a militia. In the same sense that it’s possible for a house to not burn down without a sprinkler system. Maybe even common.

It’s possible for a country to be unfree with a militia. Especially if it’s the “select” militia the founders argued against, and a lot of people don’t want to be free. And houses WITH sprinkler systems can burn down, especially if there’s an arsonist involved.

If you want to claim that, “A well regulated militia is necessary to the security of a free state” has been falsified, you have to be clear about what this claim actually asserts, and what it doesn’t assert. Don’t go making it into a claim the founders weren’t stupid enough to make, just because that claim is easy to prove false.

We abandoned the militia system early on, and we abandoned it precisely because of one of it’s merits: It doesn’t facilitate wars of aggression. We have a standing army, contrary to the founders’ intent, and it’s NOT because of the imminent threat of invasion from Canada and Mexico, it’s because you need a standing army if you’re going to be invading people all over the world.

I would, frankly, like to see us get rid of that standing army, and implement a genuine militia system. Not just because it would make our liberty more secure, but because it would get in the way of our engaging in unending war. (Which would also make us more secure!) Not bloody likely to happen, unfortunately. Looks like we’re always going to be at war with Oceana.

Now, another of the merits of a genuine militia system, where virtually everyone is armed, is that it’s supposed to make, in extremity, oppressing the public dangerous for the government. Yes, this is the insurrectionist theory of the 2nd amendment. We were on a track in the ’90′s to test this, with the government literally burning people alive over gun control, and more and more people organizing to resist the government. Fortunately the government backed down, though I find it depressing what it apparently took. Hardly ever burns people alive (On US territory…) anymore. Though I also get the impression that time is fading from Democratic memories, and a longing is rising to unleash the jack booted thugs again, in the belief that a bit of calibrated violence will cause gun owners to knuckle under, rather than organize and become more militant.

But, the bottom line is, like it or not, the 2nd amendment IS part of the Bill of Rights. Refuse to uphold it, and you demonstrate the government is fundamentally lawless, and only increase the motivation of the people to be armed against it. So long as it is in the Constitution, upholding it, GENUINELY upholding it, is a matter of the rule of law.

You don’t like it, repeal it. And don’t whine about the Constitution being broken, and amendment being impossible. The only reason it’s impossible to repeal the 2nd amendment is that not that many people agree with you. Not being able to amend the constitution contrary to the will of the people is a feature, not a bug.

The Constitution remains binding.
The interpretation of the Constitution has been flexible. And that is and was necessary because the words of the Constitution are in many cases flexible words themselves.

What is ‘cruel and unusual punishment’ except a value judgment supported by moral and scientific arguments?

So people can in good faith argue that the SCotS has interpreted parts of the CotUS too narrowly or strictly. So, we don’t need to amend it every time we disagree with rulings.

“The Constitution remains binding.
The interpretation of the Constitution has been flexible.”

And that’s how people who don’t want the constitution to remain binding accomplish it, without ever admitting that it’s not binding anymore: By being flexible. That’s how the 14th amendment was rendered a dead letter.

You just want the 2nd amendment treated the way the 14th was in the Slaughterhouse cases. That’s all.

No, I call that bad faith. That’s all ‘living’ constitutionalism is, bad faith made systematic and self-rightous. Bad faith with a clean conscience.

You know, you can justify this stuff to yourself all you like, and go to bed and sleep the sleep of the just, and it won’t do a thing to make the people whose civil rights you’re violating see the action as any less legitimate. It’s not the people who *like* a policy you need thinking it’s constitutional, they’re a given. It’s the people you’re screwing over, who have no reason to accept this sort of nonsense.

Seriously, can you give a definition of what “good faith” consists of when interpreting a constitution? I would say good faith consists of interpreting the text in a disinterested manner. You didn’t write the text, you didn’t ratify it, you had no part in giving it meaning. Your own personal preferences have nothing to do with what it means. It may mean something wonderful, it may mean something horrifying, but it means what it means regardless of whether what it means is good or bad.

You should approach the Constitution of the United States the same way you would an inscription from some ancient civilization: Full of curiosity as to what it means, but fully prepared to go where the evidence leads, without regard to the destination. THAT is “good faith”, and it is the precise opposite of living constitutionalism.

You ask what “cruel and unusual” means, and my answer is: Whatever it means, it means it regardless of what you would LIKE it to mean. And accepting that is the first step in approaching Constitutional interpretation in good faith: The Constitution doesn’t have to mean something you like.

I’ll try explaining bad faith:
Bad faith is assuming that your understanding is the only possible correct interpretation.
Bad faith is making straw arguments.
Bad faith is having one rigid weighting of factors.
Bad faith is not seeing that the Founders themselves did not agree on what the document meant and implied.

–
None of us can be disinterested, and it’s unfair to hold that as your standard. We all view the world with different eyes, and bringing our own opinions if fair game for understanding the meaning.
English words do not have some mechanistic meaning, so we must use our brains and hearts. Sorry if it’s too wishy-washy for you.

That said, the parts that are strictly worded should not be muddled. January 20th is January 20th. (unless our dictator decrees that the month of January is no more, and calls it Obamuary. Then strictly worded, his term would never be over, as the next inauguration would never occur.)

Mobius, the interstate Commerce clause is “strictly worded”. Nothing about “aggregation”, nothing about effecting interstate commerce. Hasn’t done any good. In the “living constitution” world, ‘ambiguity’ isn’t a function of the words and grammar, it’s a function of the degree of miss-fit between the words, and the desired policy. Everything is ambiguous enough to close that gap, if the judges feel like playing along.

What he’s admitted is that their justification may have been wrong, or may have become obsolete, or perhaps both. And what he’s pointed out is that in their wisdom, they created a process for future generations to correct and/or update them and their rules. This, of course, is what Brett has stated several times before: “Hey, if you think it’s wrong, all you have to do is get the votes to change it.”

Unfortunately, as 30 years in project management taught me, any project plan that starts with “All you have to do …” is doomed.

I really doubt that the USA of 2013, with such a huge percentage of it’s population in prison, and laws regulating so many aspects of our behavior, would be considered by the founders to be a “free” state.

They considered a country with anywhere from several hundred thousand to a couple million human beings bound in permanent chattel slavery to be a “free” state. It’s amazing what contradictions people can reconcile when they’re truly determined.

I also find it fascinating that Brett happily accepts the fact that the militia was supposed to be a police force and then decries the way that the government has used its police forces as a reason to support having a militia.

Why? Because one can’t grant the necessity of a police force, and still object to any of the laws it’s used to enforce, or the way in which it enforces them?

Actually, the founders were quite aware that their “free” state was only free for some of it’s inhabitants. I wonder what shameful abuses the future will consider us monsters for permitting? Victimless crime laws? Burial of people who could have been cryonically suspended? It’s a sobering realization that every age fails the standards of future ages, just as many ages fail even the standards of prior ages.

But, anyway, nobody thought the chief virtue of a militia system was it’s military effectiveness. Just that it was likely effective enough to buy you time while you raised an army when you really needed one, while having less potential for abuse.

As a historical note, in the late 18th century the rifle was an inferior military weapon to the smooth-bore musket in most circumstances. It was not only more expensive to manufacture but took longer to reload. It was a rare battlefield on which the extended range of the rifle adequately compensated for its much lower rate of fire. The American militia was often (though far from always) armed with rifles because they were better hunting weapons.

A part of the key to the proper use of these militia units was not only to build tactics around the fact that they would break and run in the face of an attack by British regulars, as Morgan did at the Cowpens, but also to make sure that one chose a field on which the terrain favored the rifle if that was how they were armed, as Morgan did at Saratoga. (If one comes to the conclusion that Daniel Morgan was a pretty good battlefield commander, one would be correct.)

All of the major victories by rifle armed militia units, which includes King’s Mountain in addition to the above, took place on broken terrain which disrupted the British ability to maintain formation and thus prevented them from establishing the the mass of firepower provided by formal tactics. Unfortunately, you can’t win a war by only winning the fights in the forests and mountains, so the Patriots had to create the Continental Army, recruited primarily from the urban poor. Far from being a citizen militia, regiments such as the 1st Maryland and the 1st Delaware became some of the finest regular army troops in the world.

And anyone who considers themselves to be a Constitutional originalist should be adamantly in favor of chopping the DoD down to about a tenth of its current size.

Alexander Jackson? Andrew’s smarter and until now unsung older brother whose part in the Battle of New Orleans has received less than footnote treatment ever since. It is said that when Old Hickory ordered his artillerists to “elevate them guns a little lower” on Packenham’s advancing forces, Alexander corrected the grammatical faux pas, and has been an historical cypher ever since.

Excellent post. I thoroughly enjoyed it and have only in the past few days re-read Plutarch’s “Gaius Marius.” For all the trouble the Marian military reform caused the Roman Republic, it was nevertheless a system that held an empire together for half a millennium. You make a good argument for the effect of that lesson on the so-called Founding Fathers.

What a great set of comments on a great post. I was thinking, Harry Flashman? who’s that? And then I started laughing. And googled to confirm. Quite a long time ago while ensconced at the in-laws for a dreary Georgia x-giving I discovered my MIL’s pile of Flashman books. I had a really good time with them.

Fascinating post. Washington famously wrote (or said, I cannot remember) that to rely on militia is to lean on a broken staff. I have tried this line of argument with gun nuts, typically they just end up blinking at me. It usually goes something like this…

Me: “Do you really think you and your friends are going to stop the Marine Corps from killing you with your AR-15s and handgun collections? America has the most flexible and dangerous standing army on the planet, do you really believe that the 2nd amendment is going to stop the military if it turned on the people?”

Gun Nut: (with a smug grin) “Maybe not but it doesn’t matter, because the majority of people in the military are good constitutional conservatives and would never do such a thing”

Me: “So the second amendment works because the standing army would never actually challenge the will of the people and therefore an American man and his rifle would not be overwhelmed?”

Gun Nut: “Exactly. So when Obama’s jackboots come looking for me, me and my AR-15 can engage them on equal footing”

Me: So, you are looking to a situation in which the President and the Federal Government but NOT THE MILITARY are at war with the American people? The military refuses to support the evil commander in chief but also does nothing to stop him/her? How could anything remotely like that ever even happen!?

Gun Nut: Blink.

I have trouble remembering a time in American history (post-founding) when the availability of arms to non-federal actors was a GOOD thing. The only example I can think of were the rounds drilled into federal marshals enforcing the fugitive slave law, and of course slave-takers engaged in the same line (very few marshals and slave takers were actually killed, so this is really not even a blip historically). On the other hand, we did have an unimaginably brutal traitor’s war that scarred the nation even to this day in which the South readily employed “well-regulated militias” to maintain the quintessential free state, the Confederacy. Had there been no state militias, the admittedly meager 15k (I think) man federal army would have been the only force under arms when Lincoln was elected. Sounds like that probably would have been a better set circumstances for Lincoln than the one he faced historically.

In this day and age to truly resist the American military effectively requires RPGs and high-tech guided munitions for use against world-class military aircraft. Is anyone proposing we do this?

I’ve never quite understood why gun controllers think Americans are the only people in the world who are incapable of engaging in asymetric warfare. Somehow they always picture the resistance against them stupidly engaging in setpiece battles, and being obliterated by high altitude bombing.

“Americans are the only people in the world who are incapable of engaging in asymetric warfare.” Well, in photos of reasonably successful guerrillas (Castro, VC, FLN, Yugoslav WWII partisans, Taliban, etc) they always look thin.

How many examples of asymmetric warfare can you come up with that actually led to a free society? Overwhelmingly the evidence is that once such an approach becomes necessary, the chances of emerging with one is vanishingly small.

No, I agree. I’ve argued that it’s a misnomer to refer to the “Revolutionary war” as a revolution, because the states were already self-governing, largely independent political entities, and went to war to resist King George’s effort to undo that status quo. It wasn’t a revolution, it was a war of resistance against an outside effort at conquest.

Arguably, of course, given the US federalist system, a revolution here would still have the same nature, it would in a large part of the country be a war against the central, not local, government.

Most revolutions are, regrettably, 360 degrees. But, of course, once you need to engage in such warfare, you’re already in the skillet, so to speak. Might as well spin the wheel, maybe you’ll luck out.

That wasn’t the question I asked. I asked how many instances of *asymmetric warfare* have led to a free society. As noted above, quite aside from how it is characterized politically, the American revolution was not, from a military standpoint, a case of asymmetric warfare accomplishing anything. The examples of it in that conflict were sideshows. The Patriots won by developing a modern military that was as good as that of the British and capable of fighting them on even terms on the formal battlefield. That led to French intervention, an even greater preponderance of formal warmaking capacity and victory, heavily aided by the only major French naval victory over the British in history.

I’m taking issue with your idea that having a militia armed for fighting the government through asymmetric warfare has any real probability of leading anywhere we want to go. One of the problems with asymmetric warfare is that the leadership that can prosecute it successfully almost invariably learns a political approach inimical to freedom. Democratic values just are not at the forefront of how such a war can be prosecuted. And so, when it’s over, if your partisan forces win, you’re stuck having given power to a bunch of people who will abuse it and not give it up. A successful, large scale use of asymmetric warfare doesn’t produce George Washington; it produces Robert Mugabe.

The problem with your argument isn’t that an asymmetrical force can’t win a war. It’s that by the time one is useful to protect a free society, it’s too late. If you want to protect freedom, you need to protect the things that can defend it before you need a militia.

= = = One of the problems with asymmetric warfare is that the leadership that can prosecute it successfully almost invariably learns a political approach inimical to freedom. Democratic values just are not at the forefront of how such a war can be prosecuted. And so, when it’s over, if your partisan forces win, you’re stuck having given power to a bunch of people who will abuse it and not give it up. A successful, large scale use of asymmetric warfare doesn’t produce George Washington; it produces Robert Mugabe. = = =

To Mr. Bellmore and his ilk, that’s not a bug, it’s a feature. They are aching for a chance to win back through their gun collections what they have been losing at the ballot box and the cultural norm since 1968.

I think this discussion should be tied back to “A Principle of Wide Application”. The notion of the US second amendment today as being about militias in the effective-military-force sense rather than the terrorizing-the-broader-populace sense is once of the arguments that most thoroughly convinces many people that a certain class of gun nuts are in fact nuts.

I recently read an article which made the case that an important function of militias in the post revolution South was to defend against slave rebellions and escapes. Of course, one should never underestimate the value of these organizations as simply clubs for men with too much time on their hands.

There is an additional school of thought that the interpretation of the amendment changed after the civil war from one that emphasized a real state-organized militia to one that emphasized individual rights to own arms. The change occurred because the “state-organized” militia in many southern states became nothing more than the KKK and the change in emphasis was to allow blacks to arm themselves for their own protection.

I recommend not only the truth-out link, but the article there cited, http://www.saf.org/LawReviews/Bogus2.htm I have no further independent confirmation of his theory, but it sounds highly plausible to me. It provides for me an answer to something has long puzzled me: What were the Founders saying in the convoluted Second Amendment that couldn’t have been said a lot more simply and directly? And why wasn’t it? How about this: “A well regulated [slave-enforcement] Militia, being necessary to the security of [the white people of] a free State, the right of the [slave-owning white] people to keep and bear Arms, shall not be infringed [by the federal government or non-slave states in any way that interferes with the slave system].”

I find it moderately ironic that your link to the eponymous Prof. Bogus’ essay is by way of the Second Amendment Foundation; I don’t imagine you’ll find a comprehensive compilation like this at the Brady Center.

I saw that when it was going around on Facebook, and cannot agree. There were militias everywhere in pre-constitutional America, and the right to bear arms in the 1777 Vermont constitution makes the theory look silly. Yes, a slave revolt is one of the things a militia would defend against. But so far from the only thing that I think it’s a big stretch to say this was the point. And if you look at the concerns raised by the anti-federalists (including Luther Martin) you find that they are more about generic federalism than about slavery: Maryland didn’t want to send it’s militia up to Vermont to deal with an uprising up there, and be defenseless should someone invade/arise (Natives, Catholics, slaves, pirates, poor people) arise back home. But, of course, the Second Amendment doesn’t solve any of these problems. It prevents dissolution of the militias, and pretty much nothing else.

Of course the point of a militia is protection of the status quo. And of course in many places that included slavery. But also real property.

Here’s a bit of the Massachusetts constitution of 1780: Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power. Pennsylvania Declaration of Rights, cl. XIII, 1776.

One always has to keep in mind, also, that when it was adopted the second amendment was about preventing Congress from constraining state militias, not preventing cities or states from constraining private gun handling/ownership within their borders. To get to that, one has the perverse pleasure of arguing that in the immediate aftermath of the Civil War, there was a serious argument that people opposing the government ought to have more guns and less restrictions.

And I guess I’d be interested to see an inventory of Northern politicians who in 1868 thought staying armed to resist the government was among the liberties that needed protection from state interference.

A couple of years ago I searched Google Books to find instances of the phrase “well-regulated militia” in the 17th & 18th century. (The following is from memory; it was mere idle curiosity, not actual research).
I checked (I think) most of the hits, and in almost all (at least) the phrase was in the context of the British debate between standing armies & militia forces to defend the realm. (Or else, of course, in the actual debate over the ratification of the constitution.)

Excellent post! I have two points to add: one a nit, and the other maybe more significant.

First, the nit. The militia is more than the National Guard. In typical states, it includes the adult male population, up to a certain age–I think 45 or so.

Second, the significant point. The framer’s concern seemed to be with standing armies, not standing navies. Art 1, Section 8, cl 12 of the Constitution allows Congress to raise an army, but no appropriation is to be for more than one year. Art 1 Section 8 cl. 13 allows Congress to “provide and maintain” a navy, with no limit on appropriations. This makes sense, if you think about it in terms of the eighteenth century.

Part time volunteer navies were shown to be impracticable at a fairly early date. Apart from the burden of maintaining the infrastructure – N.A.M.Rodger has identified the Royal Navy as the largest industrial enterprise in Britain in the 18th century – you have the problem of manning the ships. In peacetime officers could be laid off on half pay and recalled at need (although a core of continuously serving officers to oversee maintenance was always necessary); that was a sort of militia principle, but a pretty bastardised one. When it came to ORs, it got trickier. The origin of impressment was that the Admiralty sent a note to all the major ports instructing them to send a given number of seamen to a specified location. This worked. It was resented, but it was obeyed, and you could stretch a point to regard the seamen concerned as a sorta, kinda naval militia. However, once the navy grew beyond a fairly modest size, these demands impacted seriously on the local economy and lead the local authorities to collude with the seamen’s families and employers to avoid the press, which then had to be enforced with full on violence.

The Americans, who were nothing if not a maritime people, knew all this very well. Why would they repeat a failed experiment? As you say, in terms of the eighteenth century, the constitutional provision makes sense.

“The right of the People”. The second amendment refers to a collective and not an individual right, It refers to a right of the people, not rights of persons. The people, is a singular noun which is not synonymous with “persons” although it has become nearly so in vernacular English today. In the eighteenth century it was more clearly understood as a singular noun, referring to a nation, a race, a populace, in various contexts, but never properly speaking a plural number of individual persons. It’s really that simple.

If we look elsewhere in the Bill of Rights we see a “right of the people peaceably to assemble”, which I guess must be done as some form of collective, though it could be a collective small enough to fit in a tavern rather than comprising all of “the people”. Then we’ve got “the people” and “persons” in one clause, “The right of the people to be secure in their persons”. That sounds like an individual right to me.

Irregular forces have little chance of winning a conventional war against an up-to-date 21st century military. If the US military unanimously decided to impose martial law, no amount of militiamen would be able to eject them from the cities in the short term. But the modern case for irregulars fighting a guerilla campaign seems much stronger to me. Perhaps this is a more realistic version of the survivalists’ fantasy: they couldn’t directly prevent tyranny in America by force of arms, but a tyrannical regime, especially one of foreign occupation, could eventually be worn down to the point of bankruptcy, and the likelihood of this outcome would prevent most would-be dictators from even trying.

= = = But the modern case for irregulars fighting a guerilla campaign seems much stronger to me. Perhaps this is a more realistic version of the survivalists’ fantasy: they couldn’t directly prevent tyranny in America by force of arms, but a tyrannical regime, especially one of foreign occupation, could eventually be worn down to the point of bankruptcy, and the likelihood of this outcome would prevent most would-be dictators from even trying. = = =

In the context of the modern US gun fetishists, it would be nice to know against who exactly they plan to execute this insurgency and guerrilla campaign. Who gets to decide when a “tyranny” exists and start shooting? Note that a substantial percentage of Republicans believe that Barack Obama is not a legitimate President and that he plans to impose tyranny on the United States (“I want my Constitution back”) – at what point are they justified in taking up arms, killing the oppressors, and hanging the libruls from lampposts?

This is not a theoretical matter for me; I work with several people very similar in outlook to Mr. Bellmore who I know to be both big supporters of the “defense against tyranny” argument and to be very heavily armed. My political views are known to them. At what point are they justified in “taking up arms” and shooting me? When the Affordable Care Act goes into full effect in 2014? If the Democrats retake the House of Representatives in 2014? If the Republican gerrymandering/disenfranchisement campaigns in Virginia and Michigan fail? If a Democrat wins the Presidency in 2016? If Elizabeth Warren runs for President? Who makes the declaration of “tyranny” (or even “foreign invasion”) and when are they justified in filling me full of ‘M855 5.56×45mm NATO’ and hauling my daughter and stash of canned beans off to their compound in Idaho? As I said, this is not of academic interest to me.

“Perhaps this is a more realistic version of the survivalists’ fantasy:”

It’s not just a more realistic version if it, it’s the actual version. The “militia forming up in ranks to be mowed down, and building huge encampments to bomb from high altitude” fantasy is held by the other side, where the dream is that gun owners revolt, finally providing an excuse to slaughter them.

So, you need access to high capacity semiautomatic rifles (or, heck, let’s go all the way and say M-60s and SAWs and Stinger air defence missiles) because you’re worried the Quebecois are going to invade and impose a tyranny upon us? Or is the Spanish-speakers south of the Rio Grande you’re worried about?

And mass killings in our schools and places of business is an acceptable price so that we can deter this?

Just for the record, I have no desire to slaughter gun owners any more than I wish to be slaughtered by gun owners. Most people I know feel similarly. Oh, yeah: I’m a gun owner but not a gun fetishist.

For the *other* rights enumerated in the Constitution and its amendments—freedom of speech, the press, assembly, religion, trial-by-jury, sufferage—it is, in fact, possible to explain the “need”. We know exactly what happens to minority-religions when religious practices are an object of majoritarian rule. It’s a bad thing, we know exactly how bad it is, and the “right”—encoded into our only non-majoritarian document—prevents it. Free press? Same thing. We need it, and we need it to be there in spite of hostile majorities.

The 2nd Amendment is the only thing in the Bill of Rights for which the need is actually *missing*. Hence sentences like yours. If the only reason it’s a right is “because the founders said so” then it shouldn’t be.

Explain why I shouldn’t point at the Constitution when discussing what IS, legally, a right. Are we, per Strossen’s ‘not co-extensive’ remark, to completely unanchor “civil liberty” from “specified as a right in the Constitution”? Do you really want to claim the contents of the class, ‘civil liberties’, has nothing to do with what the Constitution, explicitly, declares to be a right?

That’s a remarkably explosive demand, given how many ‘civil liberties’ liberals are concerned with don’t EVEN have a textual hook to hang on.

But to bite, anyway, despite the irrelevance of the demand: It should be a right, because you can exercise it without hurting anyone. EVERYTHING you can do without hurting somebody else ought to be a right. “It hurts somebody else when you do it.” is the single justification for telling anybody they can’t do something.

Don’t tell me some minority exercise the right and DO hurt people. That’s true of every right there is. The question is whether doing it inherently hurts anybody, and the answer is clearly, ‘no’. The great majority of people exercising this right will never harm anyone.

Generalized ‘freedom’ is a perfectly good explanation.
Just let me note, for the record, that my freedom to posses various other hazardous objects is rightfully constrained by law.

My (hypothetical) possession of smallpox virus _can_ be exercised without harming anybody. But there should be a balancing between the risks of ownership of dangerous substances and the utility of said substances.

The fact that the US has an high rate of murder and suicide by gun (compared with other 1st world countries) shows that there is a heavy weight on one side of the balance.
Show me the heavy weight on the other side.

The fact that there are areas in the country which manage to combine high rates of gun ownership and low rates of violent crime demonstrates that your proposed causal relationship is bogus. Otherwise D.C. would have a lower murder rate than Virginia next door. But then, I’ve already remarked on how international comparisons like that founder on the existence of extremely powerful confounding variables. (As well as from the fact that there’s a test group of one.)

The “heavy weight” on the other side is tens of millions of people exercising the right, and not hurting anyone. These are the people you’d threaten with violence if they don’t obey your orders. LEGALLY, the heavy weight in the room is the fact that it’s a genuine, actually listed in the Constitution, not to be infringed, Constitutional right. Which means those tens of millions of people will understand quite clearly that the orders you’d be issuing, with the treat of violence if they don’t comply, have no legal basis. They’re criminal enactments of a criminal government.

That’s a clever thing to prove to people who think they own those guns in case the government turns criminal.

“Yet naval powers (Athens vs Sparta, Britain vs France) tend to be more democratic than land-based ones.”
The Venetian Republic is a counterexample. It was a republic; but a narrow oligarchy, not as democracy, and for much of its existence a police state as well. Troublemakers were “disappeared” into the lagoon – they found the aquatic graveyard recently..

When I was studying Roman history, it hit me immediately: the Second Amendment really says, “There shall be no Marian reform of the army.” But Google Scholar couldn’t come up with anybody else who’d ever said anything about it. I’m not a historian, so I figured that meant it wasn’t such a good idea after all. I am delighted to see someone else on that road.

“Madison, in The Federalist No. 46, invoked ‘the advantage of being armed, which the Americans possess over the people of almost every other nation,’ avowing that if European civilians were comparably equipped, ‘it may be affirmed with the greatest assurance that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.’”

Er, no. The article you quote takes Madison totally out of context. The full quote:

““Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.”

For Madison, the “advantage of being armed” was not a sufficient condition for opposing oppressive central government supported by a standing army. Successful opposition also required subordinate governments to direct the effort. Indeed, the Founders in general thought that the States, acting together, were the proper bulwark against Federal tyranny. As it happened they failed to consider what would happen should other states support it…

No worries. I was as surprised as you that Fields and Hardy used it this way, and it makes me wonder about their article more broadly (haven’t had a chance to read the whole thing yet).

Problem is that gun nuts use almost exactly this selective quote from Federalist 46 to support their “individual rights’ argument, and I’ve gone round and round with some of them on this before. So when I see Madison misleadingly quoted this way I feel a need to make this point.

For my part, I think a proper originalist reading of the second amendment would hold that citizens are entitled to own and bear all the muzzle-loading black-powder flintlocks their hearts desire, rifles or muskets or pistols. And of course cutlasses, sabers, and maybe dirks– what contemporaries would have understood as bearable “arms”.

= = = You ask what “cruel and unusual” means, and my answer is: Whatever it means, it means it regardless of what you would LIKE it to mean. And accepting that is the first step in approaching Constitutional interpretation in good faith: The Constitution doesn’t have to mean something you like. = = =

Amazing how often words used in the late 1700s mean exactly what members of the hard Radical Right want them to mean. Now we’re going to get a new definition of “originalism” that just happens to mean what Mr. Bellmore wants it to mean.